Inayat Ullah Vs. The Custodian, Evacuee
Property  INSC 93 (30 October 1957)
IMAM, SYED JAFFER BHAGWATI, NATWARLAL H.
CITATION: 1958 AIR 160 1958 SCR 816
Evacuee property, Notification of-Issue of
notice by Custodian on person interested-Propriety, if can be determined by
Court-Refusal of copies of materials by Custodian-Legality-Administration of
Evacuee property Act, 1950 (XXXI of 1950), s. 7.
The appellant and his brother owned certain
properties inherited from their father. The brother died and the appellant
claimed to have become the sole heir. The respondent issued a notice under S. 7
of the Administration of Evacuee Property Act, 1950, in respect of the share of
the brother on the ground that the brother had left a widow and a son who had
migrated to Pakistan. The appellant, desiring to know on what materials the
notice was issued, applied for copies of the materials on the basis of which he
respondent had formed his opinion. The application was rejected by the
respondent. The appellant filed a petition under Art. 226 of the Constitution in
the High Court which was also dismissed. The appellant obtained special leave
and contended that the notice was issued without jurisdiction as there was no
material before the respondent to justify his issuing of the notice and that
the application for the copies had been improperly -ejected by the respondent.
Held, that it was for the Custodian to form
his opinion on such material as was before him and on such information which he
possessed. It is not for any Court to determine whether the information in the
possession of the Custodian was adequate to justify the issue of a notice under
S. 7 of the Act:
Held further, that the application for copies
had been rightly rejected. There are two stages in the process whereby any
property can be declared to be evacuee property under the Act. One is the
issuing of the notice to persons interested and the other is the inquiry under
S. 7. The proceedings commence after issue of the notice and not prior to it. A
party to the proceedings will be entitled to copies of the record and evidence
from the stage of 817 the issuing of the notice until the conclusion of the
enquiry but not previous to the issue of the notice.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 144 of 1956.
Appeal by special leave from the judgment and
order dated the 9th July, 1955, of the former Madhya Bharat High Court in Civil
Misc. Case No. 27 of 1954.
M. A. Khan and Ratanaparkhi, for the
S. N. Bindra and R. H. Dhebar, for the
1957. October 30. The following Judgment of
the Court was delivered by IMAM J.-This is an appeal by special leave against
the order of the Madhya Bharat High Court dated July 9, 1955, rejecting an
application filed by the appellant under Art.
226 of the Constitution.
According to the appellant, his father
Habibullah died more than twenty years ago leaving behind the appellant and his
brother Bashirullah as his sole heirs. Habibullah, on his death, left immovable
properties in the city of Indore.
Bashirullah, who was unmarried, went mad in
1942 and died in 1950 without any issue. On his death, the appellant became the
sole owner of all the properties left by his father Habibullah. On September
21, 1954, the respondent purported to serve on the appellant a notice tinder s.
7 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950),
hereinafter referred to as the Act. This notice was not served on him and was
never pasted on the property concerned. Service of the notice was, according to
the appellant, not proper and therefore illegal.
The appellant desiring to know on what
material the notice under s. 7 of the Act was issued against him applied on
October 1, 1954, for copies of the record and the evidence in the possession of
the respondent on the basis of which he formed the opinion that Bashirullah, at
his death, had left behind a son Iqbal and a wife Kamrunnissa who had migrated
to Pakistan in consequence of which the estate inherited by them from
Bashirullah became evacuee property. The application was rejected by the
818 The appellant filed a petition under Art.
226 of the Constitution in the Madhya Bharat High Court, which was dismissed by
that Court. The High Court was of the opinion that two questions fell to be
decided in the proceedings before it-(I) was the notice dated September 21,
1954, issued by the respondent under s. 7 of the Act, illegal and (2) was the
refusal of the respondent to supply to the appellant copies of the record and
the evidence in possession of the respondent prior to the issue of notice under
s. 7 of the Act unlawful? Both these questions were decided against the
The notice dated September 21, 1954, was
issued under s. 7 of the Act in accordance with the Rules framed under s. 56 of
the Act. Under s. 7 of the Act the notice has to be given to persons interested
in the prescribed manner. Rule 6 of the Rules framed under the Act requires the
notice to be in Form I to be served on persons interested in the property
proposed to be declared evacuee property. We have compared the notice issued in
the present case with Form I of the Rules and can find no difference between
them in essential particulars. It was said that the notice in the present case
does not state the grounds upon which the property concerned was proposed to be
declared evacuee property and Iqbal and Kamrunnissa evacuees. This contention
is without foundation because the notice in question definitely states under
the heading "Grounds" that Iqbal and Kamrunnissa migrated to Pakistan
after March 1, 1947, on account of the creation of the Dominions. The notice
specifies with sufficient clarity the particulars of the property proposed to
be declared evacuee property.
There was no reliable material to prove the
assertion of the appellant that the notice was not properly served. We are,
accordingly, of the opinion that the notice in question has not been proved to
be illegal on account of contravention of any of the provisions of the Act or
the Rules made there under.
It was next contended that there was no
material before the respondent to justify his issuing the notice and,
therefore, the notice was issued without 819 jurisdiction. Section 7 of the Act
provides that where the Custodian is of the opinion that any property is an
evacuee property within the meaning of the Act he may, after causing notice
thereof to be given in the prescribed manner to the persons interested and
after holding such enquiry in the matter, as the circumstances of the case
permitted, pass an order declaring any such property to be evacuee property.
It is for the Custodian to form his opinion
on such material, as was before him, and on such information which he
possessed. The notice which he issued was in Form I of the Rules framed under
the Act and it stated clearly that there was credible information in possession
of the respondent that lqbal and Kamrunnissa were evacuees and that the
property specified in the notice was evacuee property.
It was for the respondent to decide .
whether, on the information in his possession, he should issue a notice under
s. 7 of the Act. It is not for this Court or any other Court to determine
whether the information in possession of the respondent was adequate to justify
the issuing of the notice. The contention on behalf of the appellant in this
respect cannot be supported on any valid ground.
It was next contended on behalf of the
appellant that when bona fides of the respondent bad been challenged in the
High Court, that Court should have sent for the record and seen for itself as
to whether there was any justification for the issue of the notice under s. 7
of the Act. In our opinion, this contention cannot prevail as there is no
material on the record to justify the accusation that the respondent acted with
malafides in issuing the notice. The respondent was free to believe or not to
believe the information in his possession. The mere issue of a notice would not
make the persons named therein evacuees or the property mentioned therein
evacuee property. That stage could only be reached after the notice had been
issued and after the holding of such enquiry, as the circumstances of the case
permitted, when an order declaring the property to be evacuee property could be
made in respect of a person who was an evacuee, as defined in 104 820 the Act.
In our opinion, it was unnecessary for, the High Court to have called for the
record and to have examined it for itself in order to ascertain whether the
respondent was justified in issuing the notice.
We have now to consider whether the
application for copies filed by the appellant was improperly rejected. On his
behalf, it was contended that the application for copies should have been
allowed as s. 7 of the Act contemplates only one proceeding, from the
commencement to the end, including the stage prior to the issue of notice,
regarding the declaration of any property as evacuee property and that that
proceeding is a judicial proceeding. Since the appellant was a party to the
proceedings under s. 7 of the Act, he was entitled to have copies of the record
including the evidence which constituted the proceedings. Reliance was placed
on s. 49 of the Act, which states that all records prepared or registers
maintained under the Act shall be deemed to be public documents within the
meaning of the Indian Evidence Act and shall be presumed to be genuine until
the contrary is proved. Reference was also made to s.
45 of the Act which states that for the
purpose of holding an enquiry under the Act, the Custodian shall have the same
powers as are vested in a civil court under the Code of Civil Procedure when
trying a suit, in respect of the following matters:
(a) enforcing the attendance of any person
and examining him on oath;
(b) compelling the discovery and production
(c) any prescribed matter;
and the enquiry by the Custodian shall be
deemed to be a judicial proceeding within the meaning of ss. 193 and 228 of the
Indian Penal Code and the Custodian shall be deemed to be a court within the
meaning of ss. 480 and 482 of the Code of Criminal Procedure. There can be
little doubt that the Custodian, while holding an enquiry under s. 7 of the Act
is acting in a judicial capacity and that, by virtue of Rule 35 of the Rules,
any party to the enquiry would be entitled to copies of any application, 821
objection, petition, affidavit, or statement made by a party or a witness and
any other document. He would also be entitled to copies of the final original
order passed by the Custodian or an order passed in appeal, revision or review.
The position, however, is quite different
with respect to the material in possession of the Custodian on which he formed
his opinion and on which he issued notice under s. 7, because at that stage he
was not holding an enquiry and was, therefore, not acting in a judicial
capacity. It is a misconception of the entire scheme of the Act to suppose that
an enquiry under s. 7 of the Act and the issuing of a notice previous to the
holding of that enquiry is a single proceeding. When issuing a, notice under s.
7 the Custodian merely has some credible information which, in his opinion,
justifies him in issuing it and thereafter to enquire into the matter before
making a declaration that the property is evacuee property. That information
may, after the enquiry has been concluded, turn out to be entirely insufficient
for making the required declaration. In our opinion, there are two stages in
the process whereby any property can be declared to be evacuee property under
the Act. One is the issuing of the notice to persons interested and the other
an enquiry under s. 7 of the Act. The proceedings commence after the issue of a
notice and not previous to it. At the second stage, a party to the proceedings
would be entitled to copies of the record and the evidence from the stage of
the issuing of the notice until the conclusion of the enquiry but not previous
to the issue of the notice. In our opinion, the appellant would have been well
advised to have responded to the notice issued to him and assisted the
respondent in holding the enquiry. The respondent would have had to consider
all the material before him at the enquiry before he declared the property in
question evacuee property. If the material in the enquiry was insufficient to
justify such a declaration, the appellant had the right of appeal against the
order of the respondent. In our opinion, the application of the respondent for
copies was rightly rejected by the respondent as he was not, 822 entitled to
copies of the material before the respondent previous to the issuing of the
notice under s. 7 of the Act.
The appeal, accordingly, fails and is
dismissed with costs.